Insight
August 3, 2026
When creditors do not attend the first meeting in in the liquidation and no nomination on the final appointment is made, the Master does not receive a fresh opportunity to choose who should be appointed as the final liquidators. The provisional liquidators already in office must be appointed as the final liquidators, subject only to any additional security required by the Master.
The Supreme Court of Appeal confirmed this in JP Fourie NO and Another v The Master of the High Court, Mahikeng and Another [2026] ZASCA 104, handed down on 29 July 2026.
The judgment provides certainty for liquidators and creditors where the first meeting produces no nomination and confirms that the winding-up process should continue without unnecessary disruption.
The Boxberry liquidation
Boxberry Express (Pty) Ltd was placed in voluntary liquidation during March 2022. Its three creditors submitted a requisition supporting the appointment of Mr JP Fourie as provisional liquidator and indicated that they intended to prove their claims and vote for his final appointment.
The Master appointed Mr Fourie and Mr SM Rampoporo as joint provisional liquidators.
None of the creditors attended the first meeting to prove their claims or nominate final liquidators. The Master subsequently appointed Mr Rampoporo as the sole final liquidator and declined to appoint Mr Fourie.
The provisional liquidators approached the Mahikeng High Court for an order declaring that they both had to be appointed as final liquidators. The High Court dismissed the application and found that the Master retained a discretion to depart from the provisional appointments in exceptional circumstances.
The SCA overturned that decision and ordered the Master to appoint both provisional liquidators as joint final liquidators.
Section 18(4) leaves no residual discretion
The Companies Act 61 of 1973 regulates the nomination and appointment of liquidators at the first meeting of creditors. It does not, however, specifically provide for the position where the meeting is held and no nomination is made.
Section 339 of the Companies Act therefore brings the relevant provisions of the Insolvency Act 24 of 1936 into operation.
Section 18(4) of the Insolvency Act provides that, where a meeting has been held and no trustee has been elected, the Master “shall” appoint the provisional trustee as the final trustee, subject to the provision of any additional security. Applied to a company liquidation, the existing provisional liquidator must be appointed as final liquidator.
The SCA found that the word “shall” creates a mandatory obligation. The section does not preserve a residual discretion allowing the Master to select another person or confirm only one of several provisional liquidators.
The Master had already exercised a discretion when the provisional liquidators were appointed. Their suitability and independence should have been considered at that stage. Where creditors make no alternative nomination, the legislation favours continuity by allowing the existing administration to proceed.
Creditors may participate, but are not compelled to do so
The Master argued that Mr Fourie should not be appointed because the creditors had failed to honour their stated intention to prove their claims and vote for him.
The SCA rejected this argument. Creditors have the right to attend the first meeting, prove their claims and participate in the nomination process, but they are not obliged to do so. A creditor may also prove a claim at a later meeting.
Their absence could therefore not create a power that the legislation had not given the Master.
The Court also confirmed that Mr Fourie remained a duly appointed provisional liquidator. His appointment had not been reviewed, set aside or terminated through the removal provisions of the Companies Act. The Master could not simply disregard his existing legal status when making the final appointments.
Clearer appointment process
The judgment establishes a clear sequence.
The Master selects suitable provisional liquidators at the start of the administration. Creditors may then nominate their preferred final liquidators at the first meeting. Where they make a nomination, the Companies Act regulates the appointment. Where they make no nomination, section 18(4) requires the provisional liquidators to continue as final liquidators.
Creditors who wish to influence the final appointment should therefore participate in the meeting and prove their claims. When they elect not to participate, the liquidation continues under the practitioners already appointed.
This approach protects the orderly administration of the estate and avoids the delay, additional expense and uncertainty that could follow if appointments were reconsidered each time a creditors’ meeting produced no nomination.
Barnard’s Corporate Disputes and Insolvency team advises companies, creditors and insolvency practitioners on winding-up proceedings, creditor participation, the appointment of liquidators and challenges involving decisions of the Master.
